South Dakota's unbelievable new abortion law.

The law, lawyers, and the court.
July 2 2008 6:43 PM

Telling Doctors What To Think

South Dakota's unbelievable new abortion law.

Diana Murphy
Judge Diana Murphy

In 2005, South Dakota passed an unprecedented abortion law. The statute purports to be about ensuring that patients give informed consent. Planned Parenthood characterizes it differently: as an intrusion on the doctor-patient relationship, forcing doctors to give inaccurate medical facts and to be the state's ideological mouthpiece. Now, following a ruling by the U.S. Court of Appeals for the 8th Circuit, the law is about to go into effect for the first time. And the question is how it will change the experience of going to get an abortion—and whether it will open a new front in the abortion wars by encouraging other states to follow suit.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

The South Dakota law requires doctors to give patients who come for an abortion a written statement telling them that "the abortion will terminate the life of a whole, separate, unique, living human being," and that they have "an existing relationship with that unborn human being" that is constitutionally protected. (What does the constitutionally protected part mean? Who knows.) In addition, doctors are ordered to describe "all known medical risks of the procedure and statistically significant risk factors," including "depression and related psychological distress" and "increased risk of suicide ideation and suicide."

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The idea behind the statute is that if you force women to confront the implications of an abortion, they'll be less likely to go through with it. That's what the "whole, separate, unique, living human being" language is about. In Roe v. Wade, the Supreme Court ruled that a fetus is not a person, in the legal sense of the word, which is to say it doesn't have the same rights. So South Dakota couldn't order doctors to tell women that to have an abortion is to kill a person. But human being is a different term that's up for grabs, the drafters of the legislation decided.

This was the insight of a smart New Jersey lawyer named Harold Cassidy, who has represented women who've accused abortion providers of malpractice, and who helped draft South Dakota's statute. Cassidy also helped persuade state lawmakers that women might be scared out of having abortions if doctors were forced to enumerate the procedure's medical risks. This is where the idea of linking abortion to depression and increased risk of suicide comes in. Never mind that the weight of the medical evidence tilts heavily against the increased-suicide tie or that there's more evidence of a link between depression and unintended pregnancy—or simply giving birth—than between depression and abortion, according to most of the literature.

If you care about doctors' freedom of speech, or their responsibility to give accurate information to patients, the South Dakota statute looks pretty alarming. And yet by a vote of seven judges to four, the U.S. Court of Appeals for the 8th Circuit managed to weave its way around these concerns last week. After sitting on the case for more than a year, the court instructed abortion clinics (actually, clinic, since there's only one in South Dakota) to put the law into effect in mid-July.

In a majority opinion by Judge Raymond Gruender, the court ruled only on the "human being" part of the statute—a challenge to the suicide provision is still pending before a lower court. (Planned Parenthood decided it could live with the depression provision because the law doesn't claim that abortion increases that risk.) Planned Parenthood argued that the state is legislating morality because to call a fetus a "whole, separate, unique, living human being" is an ideological statement, not a medical one. The Supreme Court has told the states that it's not for them to resolve when life begins—and it should certainly follow from this that they can't force any such resolution on doctors. As the 8th Circuit dissent by Judge Diana Murphy points out, the question "in some sense encompass[es] the whole philosophical debate about abortion."

But none of this swayed the majority. They bought the state's argument that the statute circumvents ideology by defining "human being," elsewhere in the statute, as "an individual living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation." Presto, said the majority—with that definition, the "truthfulness and relevance" of the provision "generates little dispute." Yes, this logic is as tautological as it sounds. The legislature basically defined "human being" to include unborn human beings.

The idea that a fetus is whole and separate will probably be news to a lot of women who have carried one. But what's more distressing, because the majority's reasoning is so strained, is the assertion that by defining a phrase one way, a state can erase its ambiguity and the variety of perceptions people bring to it. It's one thing to say—as the case law the majority relies on here does—that a statutory definition binds judges and their interpretation of language. It's another entirely to say that when doctors tell women they are carrying a human being, that women will think, Oh, right, that means only the long, convoluted thing that the state says it does. Most patients won't think that, because they won't necessarily define "human being" the way the statute does. As Yale law professor Robert Post says in a 2007 article (PDF) in the University of Illinois Law Review, "If South Dakota were to enact a statute requiring physicians to inform abortion patients that they were destroying the 'soul' of their unborn progeny, and if it were explicitly to provide in the statute that 'soul' is defined as 'human DNA,' the evasion would be obvious." Instead, South Dakota has co-opted human being and attached its own meaning to it.

The 8th Circuit's decision to uphold the South Dakota law, even though it compels doctors to say things they don't believe, is in part the fault of Justice Anthony Kennedy. In his 2007 decision banning a method of late-term abortion, Kennedy worried a lot about women who regret having abortions. With paternalistic abandon, he wrote about their "distress" in terms of their "lack of information" about abortion. Kennedy was talking, in graphic specifics, about lack of information on the way a so-called partial-birth abortion unfolds. Whether or not he's right, these details have nothing to do with philosophical musings about whether the fetus is a human being. But that didn't stop the 8th Circuit from quoting him at length in the very different context of the South Dakota law.

The fraught claim that abortion harms women, which I've written about before, was languishing in legal Nowheresville until Kennedy unexpectedly raised it up and blessed it. Now that notion, and the small minority of women who attest to it, are a handy new tool for abortion opponents. The 8th Circuit includes six other states—Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota. Laws that compel doctors' speech, as this one does, would now be legal in all those places, should state legislators adopt them. And if states in other regions want to try passing such laws, they'll have a great precedent to cite to the other circuit courts.

In the meantime, Planned Parenthood's lawyers and the state's lone abortion clinic in Sioux Falls have two more weeks to figure out what its doctors can legally and ethically say to the women they treat. "Our doctors are now being asked to say things they do not believe are true," says Sarah Stoesz, the head of Planned Parenthood in South Dakota, North Dakota, and Minnesota. Whatever you think about abortion, how is that a good thing?

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